Strategic segregation in the modern prison.

• Author: Dolovich, Sharon
• Position: County overview - Interview

INTRODUCTION I. PRISON RAPE, HYPERMASCULINITY, AND THE FEMINIZATION OF VICTIMS II. THE ORIGINS, MECHANICS AND EFFECTS OF L.A. COUNTY'S K6G UNIT A. Origins B. Institutional Structure: Managing the Segregation C. Classification: Deciding Who Is In and Who Is Out 1. The Initial Classification 2. The Second Step: Classification as Detective Work D. Is K6G Safer? 1. Direct Evidence 2. Corroborating Circumstantial Evidence III. K6G OR NOT K6G: THREE CRITICAL PERSPECTIVES A. "Demoralizing and Dangerous": The Antisegregationist Objection B. Drawing the Line: The Underinclusivity Objection C. Unconstitutional: The Equal Protection Objection IV. CONCLUSION: THE PROSPECTS FOR REPLICATION METHODOLOGICAL APPENDIX APPENDIX B: QUESTIONNAIRE INTRODUCTION

In corrections circles, it is well recognized that people who are gay or transgender (1) face heightened vulnerability to sexual victimization behind bars. (2) Although accurate statistics on prison rape are notoriously difficult to generate, (3) recent research confirms this dynamic. A 2007 study conducted in the California prison system found that "67 percent of inmates who identified as LGBTQ reported having been sexually assaulted by another inmate during their incarceration, a rate that was 15 times higher than the inmate population overall." (4) Recent Bureau of Justice Statistics findings suggest similarly disproportionate rates of assault for LGBTQ detainees in juvenile facilities, with "[y]outh with a sexual orientation other than heterosexual" reporting sexual victimization at a rate almost ten times higher (12.5%) than that rePorted by heterosexual youth (1.3%). (5) The title of a recent publication by the advocacy group Just Detention International (formerly Stop Prisoner Rape) crisply captures the point: LGBTQ Detainees Chief Targets for Sexual Abuse in Detention. (6)

Gay men and trans women (7) are not the only people vulnerable to sexual victimization in men's prisons and jails. (8) But their assigned place in the prison sexual hierarchy makes them almost automatic targets for such abuse. (9) For this reason, many carceral facilities around the country routinely house gay men and trans women separately from the general population (GP). Often, this segregation takes the form of protective custody, a classification that typically involves isolation in "a tiny cell for twenty-one to twenty-four hours a day[,]" (10) the loss of access to any kind of programming (school, drug treatment, etc.), (11) and even deprivation of basics like "phone calls, showers, group religious worship, and visitation...." (12) Such conditions, even if increasing a person's protection from sexual assault--a proposition some commentators challenge (13)--force vulnerable prisoners into the cruel position of having to choose between personal safety and the satisfaction of other basic and urgent human needs, above all, those of community and fellow human contact.

There is, however, a notable exception to this national trend. In the Los Angeles County Jail--the biggest jail system in the country--officials have found a way to increase the personal security of gay men and trans women detainees without forcing them to choose between safety and community. For more than two decades, the L.A. County Sheriff's Department (the Department), which runs the County's jail system, has been systematically separating out the gay men and trans women admitted to the L.A. County Jail (the Jail) and housing them wholly apart from GP. (14) As a consequence of this segregated unit--long known as "K11" but recently officially rechristened "K6G" (15)--gay men and trans women detained in the Jail are relatively free from the sexual harassment and forced or coerced sexual conduct that can be the daily lot of sexual minorities in other men's carceral facilities. (16)

In the summer of 2007, following a lengthy negotiation with both the UCLA IRB and the Jail's command staff, I spent over seven weeks conducting research in the Jail. (17) During that time, I observed the operation of K6G and the Jail more generally, (18) sat in on K6G classification interviews, spent countless hours in the officer's booth overlooking the K6G dorms, and had many informal conversations with unit residents, custody officers, and other staff. (19) I also conducted one-on-one interviews, structured around a 176-question instrument, (20) with a random sample of K6G residents. (21) In all, I interviewed thirty-two residents, (22) almost ten percent of the unit's population at the time, (23) a process yielding fifty-one hours' worth of audio recordings. (24)

This Article draws on that original research (25) to provide an in-depth account of the K6G unit. The aim is both descriptive and evaluative--to describe the mechanics of the program and its implications for residents, and to assess the weight of possible objections to the program's design and to the undertaking as a whole. As I show, L.A. County has managed to create a surprisingly safe space for the high-risk populations K6G serves. That it has done so in a carceral system that is severely overcrowded and notoriously volatile makes the success of the program even more remarkable.

There is, however, no getting around it: with K6G, L.A. County is engaged in a process of state-sponsored, identity-based segregation. Although this program would most likely survive a constitutional challenge, (26) it nonetheless puts government officials in the business of intruding into the most private and intimate details of detainees' lives in order to determine whether they meet the Department's definition of "homosexual." (27) Worse still, it engages state officers in a process of openly labeling certain individuals as sexual minorities--with color-coded uniforms, no less. (28)

These concerns are serious ones, and point to admittedly troubling aspects of the K6G program. (29) They are, however, insufficient grounds to reject the enterprise. Given the current state of the American carceral system--overcrowded, (30) understaffed, volatile and often violent, (31) frequently controlled from the inside by prison gangs and other powerful prisoners (32)--there is at present no prospect for risk-free reform. If K6G provides gay men and trans women in the L.A. County Jail with safer and more humane conditions of confinement, the question we should be asking is not whether the program ought to be allowed, but what it would take to maintain the protection it provides while minimizing the dangers posed whenever the state authorizes differential treatment on the basis of identity.

The more vexing question is whether the K6G program is one that other jurisdictions ought to seek to emulate. As I argue in what follows, given its success, this model should be available as a tool in the toolkits of officials seeking to reduce the incidence of victimization in their facilities. Whether prison administrators elsewhere will find it an appropriate model for their jurisdictions is an open question. Carceral facilities differ widely as to the profiles of their populations (in size, racial and ethnic mix, gang culture, etc.), mission (whether jail, prison, juvenile detention, etc.), institutional culture, and physical structure and design. These differences among facilities mean that, as with any program goal, one size will not fit all. (33) Moreover, given the risks of a segregated approach like K6G, (34) many jurisdictions may conclude that the possible harms outweigh the benefits.

Yet one thing is clear: even where the K6G model seems, as in L.A. County, to meet the needs of a given institution, this approach can never be sufficient. Although K6G succeeds in keeping its residents relatively safe, its admission criteria are sorely underinclusive, excluding even people who, although neither gay nor trans, are nonetheless liable to victimization in GP. (35) Plainly, all detainees known to face a risk of abuse in custody must be protected. (36) The key policy question is whether there may be grounds for dividing K6G's target populations even from other vulnerable groups. The National Prison Rape Elimination Commission (the Commission), created by Congress through the Prison Rape Elimination Act of 2003 (PREA), (37) made recommendations in its final report suggesting a negative answer to this question. (38) Concerned about the "demoralizing and dangerous" effects of the L.A. County model, (39) the Commission advanced an approach that did not distinguish among at-risk groups. (40) This unified strategy has much to commend it, not least that it mitigates many of the troubling aspects of state-sponsored identity-based segregation. For this and other reasons, (41) the Commission's approach will in most cases be preferable. Still, there may be reason to regret the widespread adoption of a unified model, which could come at the cost of some of the more humane and appealing aspects of life in K6G and result in a direct loss of some of its benefits. (42)

Certainly, no single strategy will be without its dangers and drawbacks. Prisons are an ugly business, and the problems they pose--including prison rape--admit of no easy fix. Indeed, to await such a fix would be to consign some of the most vulnerable people behind bars to the worst forms of suffering and abuse. K6G merits attention not because it is a perfect program, but because with it, L.A. County has created a relatively safe space for people who would otherwise be at great risk of victimization. Understanding how the program works day-to-day helps to explain its remarkable success. Equally important, it sheds light on the causes of prison sexual violence in general, as well as what, given the current realities of the American carceral system, is required to guard against it.

K6G also bears a close look for a further, unexpected reason: there is a lot to learn from this unit about incarceration more broadly. Although K6G shares many of the features of any custody...